Psevdos v First Mortgage Company Home Loans Pty Ltd - [2020] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Leave to Appeal to the Full Court)
PSEVDOS v FIRST MORTGAGE COMPANY HOME LOANS PTY LTD
[2020] SASC 1
Judgment of The Honourable Justice Lovell
16 January 2020
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
The appellant seeks permission to appeal a decision of a single judge of the Supreme Court, who dismissed the appellant’s appeal from a master of the Supreme Court.
Permission to appeal to the Full Court – whether a question of general principle arises – whether there is reason to doubt the correctness of the decision.
Held: the appellant is unable to show any error in the determination of the issues. No question of general principle arises on the facts of the case. Permission is refused.
Supreme Court Civil Rules 2006 (SA) r 117, r 242, r 288; Real Property Act 1886 (SA) s 191(1)(d); Law of Property Act 1936 (SA) s 55A(1), referred to.
Morgan v Workcover Corporation of South Australia [2011] SASC 113; Keung v Abbott & Anor (No 2) [2019] SASCFC 39, considered.

PSEVDOS v FIRST MORTGAGE COMPANY HOME LOANS PTY LTD
[2020] SASC 1
LOVELL J:
Overview

The appellant seeks permission to appeal to the Full Court from the decision of Hinton J who dismissed his appeal from Judge Bochner. Permission to appeal is required pursuant to r 288 of the Supreme Court Civil Rules 2006 (SA) (‘SCR’). Permission was sought from me, pursuant to SCR 117, as Hinton J was unable to hear the application.
Background
The appellant is an undischarged bankrupt, a sequestration order having been made in June 2016. In January 2017, the respondent took possession of a property at 108 South Terrace, Adelaide (‘the South Terrace property’) in its capacity as mortgagee, as the mortgagors jointly defaulted on a loan secured against the property.
The respondent arranged for the sale of the South Terrace property by public auction on 23 September 2017. On 20 September 2017, the appellant placed a caveat on the Certificate of Title.
On 20 October 2017, the respondent instituted proceedings against the appellant and two others seeking the removal of the caveat from the Certificate of Title pursuant to s 191(1)(d) of the Real Property Act 1886 (SA) to enable it, as mortgagee in possession, to sell the South Terrace property. It also sought to remedy a potential defect in the default notice served pursuant to s 55A(1) of the Law of Property Act 1936 (SA) so it could sell the related property. The appellant argued that he did not own the South Terrace property in his own right but held it as trustee for the Orio Investment Trust. In December 2017, Judge Bochner found there was insufficient evidence before her to conclude that the land was beneficially held by a trust. Judge Bochner ordered that the caveat be removed from the Certificate of Title.
The appellant did not appeal this order. Instead, despite the proceedings effectively being concluded by the order, the appellant filed two interlocutory applications. The first application (FDN 12), filed on 6 December 2017, sought permission to file and serve a cross-action. This application was held over to 18 May 2018. The second application (FDN 36), filed on 14 May 2018, sought, pursuant to SCR 242, an order setting aside the orders of Judge Bochner and a declaration that the land was beneficially owned by the Orio Investment Trust.
Judge Bochner dismissed the two applications in August 2018. The appellant appealed against the orders dismissing the applications to a single judge of this Court.
On 26 July 2019, Hinton J dismissed the appeal. His Honour dealt initially with the second interlocutory application (FDN 36). Hinton J found that the powers contained within SCR 242 were discretionary and that on review of the evidence the decision of Judge Bochner was correct. Hinton J found that the application was futile as the property to which the caveat related had been sold. In relation to the first interlocutory application (FDN 12), Hinton J found that, as the substantive proceedings had already been determined, there were no proceedings in which a cross-action could be introduced. Thus the determination of the second interlocutory application precluded his Honour from making the order sought in the first interlocutory application. On 6 August 2019, Hinton J ordered that the appellant pay the respondent’s costs of the appeal.
The appellant now seeks permission to appeal Hinton J’s decision to dismiss the appeal and the order as to costs.
Grounds of Appeal
The appellant seeks leave to appeal to the Full Court on four grounds. The actual grounds, set out in a proposed Notice of Appeal, are not easy to determine.
It is helpful to consider the orders sought by the appellant. He seeks that the orders of Hinton J be set aside together with an “order setting aside the Master’s amalgam of orders”. Before Hinton J the appellant did not seek that Judge Bochner’s orders be quashed or in some way set aside. The order sought before Hinton J was a declaration that the South Terrace property “was trust property”. The proposed Notice of Appeal seeks orders not sought before Hinton J. In essence, the appeal grounds, leaving aside the different orders sought, seek to review Hinton J’s decision that Judge Bochner was correct in holding that the South Terrace property was owned by him personally and not as trustee of the Orio Investment Trust. The appellant also challenges Hinton J’s decision on the effect of SCR 242.
It is clear from his submissions that the appellant seeks to reagitate the arguments made before Judge Bochner and challenge, in particular, the finding that, on the application to remove the caveat from the South Terrace property, there was not a serious issue to be tried. To put that another way the appellant, before Hinton J, sought to review Judge Bochner’s decision that the South Terrace property was held in his name and not as trustee of the Orio Investment Trust. He now seeks leave to appeal to the Full Court and is attempting to agitate the same factual issues he agitated before Hinton J.
Relevant Principles
In Morgan v Workcover Corporation of South Australia[1] Gray J helpfully distilled the principles to be applied when a litigant seeks to appeal a single judge’s decision to the Full Court. In relation to SCR 288, his Honour stated:[2]
In BHP Petroleum Pty Ltd v Oil Basins Ltd Fullagar J of the Victorian Supreme Court addressed the practice in that State on an application for leave to appeal:
As this is an application for leave to appeal from interlocutory orders, the authorities show that this Court should address itself to two questions, as follows: (1) whether the correctness of the orders of Murray J is attended with sufficient doubt to warrant their being reconsidered on appeal; and (2) whether substantial injustice will be caused to the applicant (OBL) if the orders of Murray J stand: see, for example Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, at p 433, per McInerney J, and at pp 441-2, per Murphy J. At p 441, Murphy J said, inter alia: “If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.”
The Victorian practice has been followed in this State. An example is to be found in Glenauchen Pty Ltd v Circuit Finance Pty Ltd where the Full Court observed:
The court's practice has been to grant leave to appeal only if a question of general principle arises. The court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice require.
(Footnotes omitted)
[1] [2011] SASC 113.
[2] Morgan v Workcover Corporation of South Australia [2011] SASC 113 at [6] – [7].
Consideration
There were, before Hinton J, two challenges in relation to Judge Bochner’s ruling on FDN 36. First, a factual challenge and secondly, a challenge to the breadth of the powers contained in SCR 242.
In dismissing the appeal against the second interlocutory judgment, Hinton J found that on a review of the evidence, the decision of Judge Bochner was correct and that the powers contained in SCR 242 were discretionary. The dismissal of FDN 36 led to the consequential dismissal of FDN 12.
I have carefully considered the submissions of both the appellant and the respondent. In relation to Hinton J’s review of the factual issues on appeal against the second interlocutory judgment, I consider that there is no reason to doubt the correctness of his decision.
In relation to the interpretation of SCR 242, I consider that Hinton J’s approach is correct. Hinton J (Kourakis CJ and Kelly J agreeing) in Keung v Abbott & Anor (No 2)[3] observed:[4]
[3] [2019] SASCFC 39.
[4]    Keung v Abbott & Anor(No 2) [2019] SASCFC 39 at [33].
…The applicable principles drawn from Viscariello and the authorities to which it refers may be distilled to the following:
I.the power to reopen is discretionary and is to be exercised with great caution having regard to the strong public interest in maintaining the finality of litigation;
II.    relevant considerations include:
i.      once a stage in the process of litigation has been completed, ordinarily it should not be revisited;
ii.     our system of adversarial litigation ordinarily obliges a party to present their whole case and to present their best case;
iii.    whether there is available an avenue of appeal;
iv.    whether the court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension of fact or law in a significant respect which cannot be attributed solely to the neglect or default of the party seeking the rehearing;
v.     whether the party applying to reopen has had the opportunity to be heard on why orders should not be made;
III.the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court or to elaborate on arguments previously put;
IV.the jurisdiction is not to be exercised to afford an opportunity to a party to persuade the court that a matter considered and decided has been wrongly decided.
In McAdam Doyle CJ added:
As the High Court said in Smith (at 265) the power is discretionary. It is not a power that lends itself to detailed categorisation, but nor is the discretion an ample one. Indeed, it is fairly closely confined.
(Footnotes omitted)
While the ambit of SCR 242 is yet to be finally determined, the power to exercise it is clearly discretionary. The appellant has not appealed the orders made by Judge Bochner. The appellant seeks to reagitate his earlier arguments; all of which have been rejected. The appellant was unable to show any error in the approach of either Judge Bochner or Hinton J in relation to their application of SCR 242.
Not only is Hinton J’s decision in my view correct, no question of general principle arises. The proposed Notice of Appeal seeks to reagitate factual matters that have already been decided against the appellant.
Order
I refuse permission for the appellant to appeal to the Full Court against the findings and orders of Hinton J.